United States v. Abreu

The Third Circuit vacated the defendant’s sentence and held that conspiracy to commit a crime of violence does not count as a “crime of violence” for purposes of § 2K2.1. The defendant pleaded guilty to possessing a firearm as a convicted felon in violation of 18 U.S.C. § 922(g)(1). In anticipation of his sentencing, the United States Probation Office prepared a Presentence Report (PSR), calculating his Guidelines range by using the enhancement that applies if a defendant “committed any part of the instant offense” after a felony conviction for either a “crime of violence” or a “controlled substance offense.” U.S.S.G. § 2K2.1(a)(4). The enhancement was predicated on a purported “crime of violence”: the defendant’s prior conviction for conspiracy to commit second-degree aggravated assault under New Jersey law. The defendant objected, but the District Court adopted the calculations of the PSR and applied the § 2K2.1(a)(4) enhancement. The defendant appealed, and the Third Circuit reversed. The Court held that the plain text, structure, and purpose of the Guidelines indicate that there is only one reasonable construction of “crime of violence” as used in § 2K2.1, and, just as in § 4B1.2(a), that construction excludes conspiracy offenses.

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